Why it's wrong to single out religious liberty for special legal protections
This provocative book addresses one of the most enduring puzzles in political philosophy and constitutional theory―why is religion singled out for preferential treatment in both law and public discourse? Why, for example, can a religious soup kitchen get an exemption from zoning laws in order to expand its facilities to better serve the needy, while a secular soup kitchen with the same goal cannot? Why is a Sikh boy permitted to wear his ceremonial dagger to school while any other boy could be expelled for packing a knife? Why are religious obligations that conflict with the law accorded special toleration while other obligations of conscience are not?
In Why Tolerate Religion? , Brian Leiter argues that the reasons have nothing to do with religion, and that Western democracies are wrong to single out religious liberty for special legal protections. He offers new insights into what makes a claim of conscience distinctively "religious," and draws on a wealth of examples from America, Europe, and elsewhere to highlight the important issues at stake. With philosophical acuity, legal insight, and wry humor, Leiter shows why our reasons for tolerating religion are not specific to religion but apply to all claims of conscience, and why a government committed to liberty of conscience is not required by the principle of toleration to grant exemptions to laws that promote the general welfare.
Brian Leiter is the Karl N. Llewellyn Professor of Jurisprudence and Director, Center for Law, Philosophy, and Human Values at The University of Chicago Law School.
Brian Leiter was a Visiting Professor at the Law School in the fall of 2006 and joined the faculty July 1, 2008, simultaneously founding the Law School’s Center for Law, Philosophy, and Human Values. Prior to that, he taught for more than a dozen years at the University of Texas at Austin, where he was the youngest chairholder in the history of the law school, and also served as professor of philosophy and founder and director of the University of Texas Law and Philosophy Program. He has also been a visiting professor of law at Yale University, of law and philosophy at University College London, and of philosophy at the University of California, San Diego.
Mr. Leiter's teaching and research interests are in general jurisprudence (including its intersection with issues in metaphysics and epistemology), moral and political philosophy (in both Anglophone and Continental traditions), and the law of evidence. His books include Objectivity in Law and Morals (Cambridge 2001) (editor), Nietzsche on Morality (Routledge 2002), The Future for Philosophy (Oxford 2004) (editor), Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy (Oxford 2007), and The Oxford Handbook of Continental Philosophy (2007) (co-editor). He is presently writing a book titled Why Tolerate Religion? He gave the 'Or 'Emet Lecture at York University, Toronto, in 2006; the Dunbar Lecture in Law and Philosophy at the University of Mississippi in 2008; and the Fresco Lectures in Jurisprudence at the University of Genoa, also in 2008. He was editor of the journal Legal Theory from 2000 to 2007 and is the founding editor of the Routledge Philosophers book series and of Oxford Studies in the Philosophy of Law, which will appear annually starting in 2009. Education:
AB, 1984, Princeton University; JD, 1987, PhD (philosophy), 1995, University of Michigan, Ann Arbor.
Great on the reread, many of the arguments hold up. Leiter defines religions have having 4 traits; they issue in categorical demands on action, they do not ultimately answer to evidence/reasons, they involve a metaphysic of ultimate reality and they render intelligible and tolerable the basic existential facts about human life.
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Religious people receive exemptions and privileges on the basis of their religion all the time in the West (vaccines, serving in the draft). This book argues that there is no good legal reason to give religious claims of conscience special privileges, just because they are religious.
The premise of the book is really interesting, and I do wonder why we have special protections for religious beliefs, instead of just moral beliefs generally. But the book goes beyond that and discusses a lot of interesting philosophical questions (what is the definition of religion? should we just tolerate religion, or actively respect it?)
A great read and the author is really good at being clear and concise.
Quotes
"In capitalist societies, where market norms increasingly permeate all activities and values, one of the few sturdy bulwarks, with broad cultural resonance, against self-enrichment as the only 'rational' end remains certain kinds of deep religious commitment."
"Why does it promote human well-being to protect liberty of conscience? Many arguments trade, at bottom, on a simple idea: namely, that being able to choose what to believe and how to live...makes for a better life. Being told what you must believe and how you must live, conversely, make lives worse. I shall gloss this simple thought as the “private space argument.” It maximizes human well-being, so the argument goes, if, within certain limits, individuals have a 'private space' in which they can freely choose what to believe and how to live"
Why tolerate religion provides a philosophical perspective on whether or not religious claims of conscience warrant special treatment. In essence, the question is should people be allowed to do something "for religious reasons" that they wouldn't be allowed to do for other reasons - for example, wear a ceremonial weapon to school because it is part of the religious practice.
The book was well-argued and clear, but it is also a little bit more technical than I expected. I think it's possible to appreciate it without a background in philosophy, but it definitely requires your full attention and can be slow-moving since it diligently goes through caveat after caveat.
I think this book is not worth reading for several reasons. Firstly, Brian Leiter, by most accounts, seems to be a shitty person. If he gets any royalties from the sales of his book, your money is better spent elsewhere, especially considering the book isn't very good in its own right.
Second, the first four chapters are largely picking on low-hanging fruit. Sure, the history of countries like the US is based in distinctly religious tolerance. However, like much of actual political history this is so far divorced from any sort of actual normative concerns or reasoning that it seems to me like an incredibly uninteresting question to tackle since, it seems obviously, that there is nothing distinctly worthy of respect/tolerance about religion when compares to other comprehensive doctrines of conscience.
Even in these first four chapters, he seems to ignore what I take to be the most compelling case for religious tolerance based on what he sets religion out to be. He spends time considering whether the first, second or fourth features of religion generate the special tolerance he is looking for while completely ignoring the third feature. Even when considering Nussbaum's argument that religious liberty requires more than toleration, some sort of affirmative respect, he completely misses the point. It seems, to me, that the argument is that religion, based on its tendency to propose some ultimate value - some thing that makes life ultimately worth living and meaningful - is deserving of respect beyond mere toleration. The reasons for this can be cached out in any number of ways - Nussbaum's reasons seem to be something along the lines of adopting such a belief is a distinctly human capacity that needs to be promoted. We could also say something like the economization of society has resulted in the deterioration of society generally as less and less people hold such beliefs, and by demanding respect for such beliefs we set the groundwork for the revitalization of a society with more robust value. This obviously goes beyond religion to include any comprehensive doctrine that proposes an ultimate value but I think Leiter misses this point entirely.
The fifth chapter is possibly the best. However, due to how disillusioning the first four were, I just didn't care much more to suffer through another 40 or so pages of Leiter's academic dishonesty and poor and crude attempts at humour. He is clearly a Nietzsche scholar simply based on how he tries to emulate Nietzsche's humour in his prose but, unlike Nietzsche, Leiter does not have a humour bone is his body.
"An interesting book to read but obviously not for everybody. Just for those of us who still like to dig around in minutiae. I wasn't aware that there are still a number of philosophical-legal arguments going on in the academic world. It's a healthy sign for society. I hope the lawyers and judges out there are following this type of discussion. (Right!!!)"
Having written the above early in my reading, I will say that it is good to see that the philosophical-legal debates continue. However, I will add that Brian Leiter has not done anything to convince me of a position with which I already had a great deal of sympathy. Indeed, I had earlier read Ashley's review and felt it to be rather harsh. Sorry Ashley. You were right.
In the preface, Leiter states, "...the aim has been to make a text readable by scholars in other disciplines interested in these issues, and perhaps also by educated laypeople." I would consider myself to be in the latter classification having spent much of my working career working with, explaining, and drafting laws. I also have studied philosophical and various legal texts over the last 40 years.
My greatest problem with this book is that it is too short to deal with the subject matter. Leiter's style has been to, "...largely [avoid] going into the minutiae of internecine debates among academic philosophers in the various camps." An example of what this translates into has been to reduce philosophical ethics to two basic points of view: 1) John Rawls representing Kant(but a position no longer held by Rawls), and 2) John Stuart Mill's utilitarianism. Personally, I would appreciate a discussion with more 'minutiae' wherein other ethical positions are represented. As this much reduced view of philosophical ethics is established in the first chapter, I spent the rest of my time reading the book arguing against what I was reading in my mind. This type of avoiding the details continued throughout the book. I was disappointed. My favourite part of the book was the detailed footnotes on case law.
Portions of the book were surely interesting, and the rather controversial subject matter was as well, but it's hard to put the book down without feeling a little bit like I've just read a rather lengthy undergraduate paper - inappropriate comparisons, a handful of hand-picked examples, and the feeling that the entirety of the piece was written half-heartedly to stand behind a strong premise.
This book has a lot of promise and if it were to be worked out to something lengthier that actually explores the moral arguments present it has the potential to be quite good. As it stands, it rather lacks a spine and therefore loses much of having a point.
"Toleration may be a virtue, both in individuals and in states, but its selective application to the conscience of only religious believers is not morally defensible" (page 133).
This book was really engaging. It is directed at interested non-specialists, but I suppose, under a careful reading, even specialists might find something valuable in the argument of the last chapter.
I wish the author would stop asking so many question, at a certain point, that started to grate on me. Sometimes he would phrase something as a question unnecessarily, and then answer it. Sometimes he would ask rhetorical questions that the reader is supposed to provide the answer to. I always answer rhetorical questions explicitly when reading argumentative essays. Sometimes they are used to mask unclear or questionable reasoning. This book is not an exception. Sometimes he asks a question that he seems to intend to answer, and then doesn't come back to it to answer it explicitly. Maybe I am not intelligent enough to follow implicit arguments. I prefer it when a writer makes everything explicit in argumentative essays, whether that is a function of my intelligence or a preference about style, I don't know.
I wish Leiter would have said more about the necessity of a state endorsing a "Vision of the Good Life." It seems plausible to me to suggest that a necessary feature of a state is an endorsement of some vision of the good life, but I am not sure how an explicit argument for this conclusion would work. Leiter does not flesh one out for the reader, he just takes this point for granted mostly.
Leiter's main conclusion seems to be that an approach to law that grants No exceptions to generally applicable laws with neutral purposes for claims of religious and non-religious burden-shifting conscience is the most consistent approach to law compatible with both, principles of fairness (given practical features of enforcement), and the necessity of a state to endorse some "Vision of the Good" (page 130).
I have already expressed one of my reservations about the last conjunct, but I think there is something more to this state endorsement business that I don't understand. Leiter claims that a state endorsement of some particular "vision of the good" is compatible with principled toleration of citizens' personal conceptions of the good life. The state may tolerate divergent views of a good life and doesn't suppress citizen's divergent views by endorsing a different conception of the good life. He admits that state endorsement of a particular vision may crowd out a citizen's personal conception (page 121), but this does not indicate that state endorsement is incompatible with principled toleration. So long as a state does not target divergent conceptions of a good life, then no problem arises with principled toleration.
I'm not sure that the "state can't target" argument is a strong enough principle to assuage certain doubts. The principle of toleration requires at the very lest we put up with divergent conceptions of the good life that don't pose harms to others. But isn't the "no-target" principle compatible with the state endorsing a very strong conception of the good life that crowds out ALL other conceptions, or weaker still, MOST other conceptions? At first blush, this seems to be the case. The state can crowd out at least one divergent conception and still be tolerant. I'm sure that Leiter does not want to claim this, and I am sure that there is a way he could shut down that argument (perhaps it is an example of the state not applying the harm principle), but it was hard to find that in the text. I think in later editions, if there are later editions, he might want to say a bit more about state endorsement.
Some of the best parts of this book include Leiter's understanding that the experience of feeling some demands as having a categorical force does not map directly to religions! Sometimes, in atheist literature, it seems the contrary position is doing some implicit footwork for the arguments. Furthermore, his understanding that "falsity of beliefs and/or their lack of epistemic warrant are not necessarily objections to those beliefs" (page 91). The contrary position is often implicit in many other works (e.g. Dawkins' writings on religion).
I will read this book again at some point, with a fresh, and hopefully, more critical, eye. I am sure that doing so will be rewarding.
A book-length argument for the proposition that religious toleration, as a practice, is justified only as a special case of freedom of conscience, which to Leiter simply requires application of traditional liberal harm principles. In other words, Leiter says there's nothing about religion as such that warrants exemptions from otherwise-applicable laws, although the religious like anyone else can seek an exemption based on the general principle of freedom of conscience (so in Leiter World there are in fact in a great many religious exemptions, at least as to acts that do no harm to others, despite the absence of preferential treatment for claimants to religious exemptions). The exposition is well done, so I recommend it if you aren't familiar with the literature, but this stuff is all old hat to me. Would have preferred a lengthy defense of Leiter's surprisingly strong objection to the Supreme Court's application of viewpoint discrimination doctrines to free-exercise and free-speech claims, eg, the Rosenberger and Milford cases.
The title of this book needs clarification in my view. The point argued is _not_ whether religiousity should be allowed / expressed or not in a society, but rather should conscientious religious objections to state-sponsored ideals of the good be given any additional weight above equally conscientious (but not based in religion) objections. Currently in the USA, deference to religious objections is somewhat tolerated (though not the same objection in all cases and in all situations, which I found particularly telling), while deference to non-religious objections are much less so. The book argues (to a fine point and with many examples) the case that this is not morally defensible, and that all conscientious objections should be treated equally, even if that means removing the privilege that those based in religion have.
Leiter, while earnest in his portrayal, does not succeed in presenting a clear and defensible thesis for the "no exemptions" camp of religious liberty scholars.
What Leiter does succeed with, however, is raising some very important questions. Does religious, per se, deserve special treatment (AKA exemptions) in the face of "burdening" laws? What distinguishes religion from other claims of conscience that appear to possess a power just as moving and forceful to its proponents?
I do not agree with Leiter's assessment of these questions, but I appreciate his serious treatment of them, and the bald fact that he sought to raise them. Overall, this book was thought-provoking and will help me greatly on my path to writing my thesis!
While this is pretty dense for me, right now, I have a feeling it's pretty light for philosophy. That's not a criticism, just a description. Even for being dense, it's pretty readable, and I appreciate the author's use of italics to emphasize key phrases - it's used well, but not over used. I am not surprised that the author ultimately decides there isn't a principled reason to privilege matters of religious conviction over other claims of conscience - that was pretty much what I assumed going in. It is nice to have an actual argument laid out, even if I don't currently feel capable of criticizing the argument itself. :)
Leiter succinctly argues that religious toleration is not synonymous with religious freedom from state jurisprudence. Concerning questions of legality, all liberty of conscience, religiously charged or not, ought to be examined critically on equal footing. A definite game changer in constitutional interpretation.
This was a good book but it had the potential to be truly great with the benefit of a more sustained engagement with its topic and more respect for human autonomy more generally.
I didn't finish reading this, but it's not what I expected, therefore not what I'd like to read. I think I know where it's going and I'm just not that interested.